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Translating constitutional norms and ideas: Genesis and change of the German 'Free Democratic Basic Order' in Korea

VRÜ Jahrgang 52 (2019) Heft 2

VRÜ Jahrgang 52 (2019) Heft 2

It is a well-known fact that German law and adjudication, and concepts of the German legal tradition more generally, have played an important role in Korean constitutional theory and practice. What is less clear is how exactly this presumed in-fluence actually took shape, and, more radically speaking, whether it should not better be understood as a kind of ‘within-fluence’. Against this backdrop, this article traces the development of one of the most notable references to German legal institutions as they can be found in the Korean Constitution(s) – the concept of the “free democratic basic order” or fdBO. The fdBO depicts the core constitutional principles on which a certain country’s democratic system is based on, such as human rights, people’s sovereignty, separation of powers, parliamentary system, election system, multiparty system, and independence of the courts. The fdBO-formula in 1960 was introduced to the Korean Constitution, and, as in Germany, over time it disseminated from the initial constitutional provision to other articles of the Constitution, diffused into common laws, and dispersed into socio-political discourses. Drawing on comparative constitutional law literature and by the approach of discursive institutionalism I inquire into the transformation of the fdBO in Korea since 1960 until today. The analysis will show how and why the “same” fdBO-formula has different as well as similar characteristics across polities and over time. It will become evident that the fdBO in Korea is a translation of its German counterpart, while it is at the same time genuinely made in Korea.

Titel
Translating constitutional norms and ideas: Genesis and change of the German 'Free Democratic Basic Order' in Korea
Verlag
Nomos
Datum
2019-08
Erschienen in
VRÜ Verfassung und Recht in Übersee, Jahrgang 52 (2019), Heft 2,195-223
Sprache
ger
Art
Text
Größe oder Länge
29 S.